Tuesday, February 11, 2020

The Death of SSR 00-4p

This is the brief in Anthony D. v. Saul raising the colorable claim that SSR 00-4p is not entitled to deference:

A.   The Death of Social Security Ruling 00-40p

The substantial evidence question involves two discrete components: (1) is there a discernible path from the vocational expert’s local knowledge that uses a reliable method to extrapolate to national data; and (2) is the vocational expert testimony feeble or contradicted. Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019). There is no discernible path from the vocational expert’s testimony from local data to national statistics because no one asked.

Kisor v. Wilkie, 139 S.Ct. 2400 (2019) retools the deference doctrine found in Auer v. Robbins, 519 U.S. 452, 461 (1997). To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation. Social Security Rulings are frequent recipients of deference. Quang Han Van v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989); Wellington v. Berryhill, 878 F.3d 687, 872 (9th Cir. 2017). The rulings bind all components of the agency. 20 C.F.R. § 402.35(b). Under Kisor, that automatic deference is now up for reconsideration. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). [D.] examines deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. [D.] starts with the text of the administrative notice regulation:
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
The Commissioner takes administrative notice of reliable job information from various governmental and other publications. Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:
In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.
The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook. Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:
The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.
The first Kisor question returns to the Chevron watershed: is the regulation ambiguous? 139 U.S. at 2415. If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore v. Swift & Co., 323 U.S. 134 (1944), but it does not get deference. There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples. Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses. Because the regulations are not ambiguous, the ruling gets no deference.

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity? 139 U.S. at 2415-16. Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed. Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. The Commissioner cannot create a new regulation by interpreting a clear one to say something that the regulation does not suggest. Christensen v. Harris County, 529 U.S. 576, 588 (2000).

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner. That is the third Kisor question. 139 U.S. at 2416. There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy.

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency. Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration. But here is what Labor says about the subject:
The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.
Dept. of Labor, Office of Administrative Law Judges, Dictionary of Occupational Titles –  Fourth Edition, Revised 1991, electronic version at https://www.oalj.dol.‌gov/‌‌LIBDOT.HTM.  The O*NET is an ongoing process of data collection and refinement.  See 84 Fed.Reg. 24822 (May 29, 2019). 

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek. The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published. The O*NET is updated every year. Most of the DOT is over 40 years out-of-date. When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek. With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:
Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.
The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set version 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT as to the descriptions contained in the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.



Lawrence Rohlfing, The Death of SSR 00-4p, California Social Security Attorney (February 11, 2020),

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